Ten years ago the National Association of Criminal Defense Lawyers (NACDL), along with the National Legal Aid and Defender Association (NLADA) and the law firm of Arnold & Porter,1 held a symposium in Washington, D.C., titled Gideon at 40: Facing the Crisis, Fulfilling the Promise.2 The symposium examined the past and present of Gideon.3
The first panel of the symposium, “Setting the Stage: Background on the Case of Gideon v. Wainwright,” included panelists Abe Krash, Yale Kamisar, and Anthony Lewis. Attorney Krash, who worked with Abe Fortas on Clarence Gideon’s case and brief before the Supreme Court, remarked that Gideon was important for two reasons:
First, because it affirms a principle that is fundamental to a democratic society, to a free society, that no person should be convicted and sent to jail unless he has the assistance of a lawyer at his side. And secondly, it was important in establishing the principle that the Bill of Rights, this particular provision of the Bill of Rights, does extend to the states, and therefore it expanded this vital and significant right.4
Professor Yale Kamisar, who authored articles that were used by defense counsel and also by the Court, reminded symposium attendees that:
No celebration of the Gideon case would be complete without mention of the amicus brief filed by 22 state attorneys general on behalf of Mr. Gideon, a brief that urged the Court to establish an absolute constitutional right to assigned counsel in criminal cases - at least in all serious criminal cases. I can’t think of another case where so many of the states’ chief law enforcement officers asked the Supreme Court to expand the rights of the accused.5
Anthony Lewis, the author of Gideon’s Trumpet, told of the promise of Gideon when he stated:
After the Supreme Court decision I recognized that it would be, as I wrote then, an enormous social task to bring to life the dream of Gideon v. Wainwright, the dream of a vast diverse country in which every man charged with crime will be capably defended with the support needed to make an adequate defense. But despite the size of the challenge, I believed then that America would meet it.6
But as author Anthony Lewis recognized, and later panels demonstrated, there was a long road ahead to fulfill the promise of Gideon.
The “Client Stories” panel focused on stories that would illuminate the injustices in the indigent defense system. Professor Barry Scheck, co-director of the Innocence Project, reminded everyone that “[e]very time the wrong person is convicted, the real perpetrator is out there committing more crimes.” One of the luncheon speakers, the late Professor Sam Dash, noted that part of the problem in fulfilling Gideon’s promise was that there was no lobby for criminal defendants.
Another panel, “A Day in the Life of a Defender,” considered the role of the public defender from the various perspectives of a prosecutor, defense attorney, judge, and academic. The day ended with a final panel, “The Systemic Crisis in Indigent Defense and the Role of the Lawyer,” which included remarks by Stephen B. Bright.
The symposium was a huge event for NACDL as it looked at the past and present of the landmark Gideon decision. Ten years later on this 50th anniversary, it is clear that there is still more work to be done to fulfill the promise of Gideon. But it is important to also remember the steps taken along the way to bring reality to the words in this landmark Supreme Court’s decision - NACDL’s symposium was just such a step.
- This event was also supported by the Southern Center for Human Rights, the Georgetown Criminal Justice Clinic, and the Georgetown Juvenile Justice Clinic.
- See Ellen S. Podgor, Introduction: Gideon at 40: Facing the Crisis, Fulfilling the Promise, 41 Am. Crim. L. Rev. 131 (2003).
- See Yale Kamisar, Abe Krash, Anthony Lewis & Ellen S. Podgor, Gideon at 40: Facing the Crisis, Fulfilling the Promise, 41 Am. Crim. L. Rev. 135 (2003).
- Id. at 141.
- Id. at 144-45 (citations omitted).
- Id. at 146.
Recognizing Gideon’s Champions
By Bonnie Hoffman
Every day, indigent defenders1 are challenged to fulfill their mission that each person accused of a crime is treated equally and fairly by the court system. Whether it is overwhelming caseloads, underfunded resources, understaffed offices, or overzealous prosecutors, each day those representing the poor are challenged to keep Gideon’s promise alive. And each day, in courtrooms all across the country, we witness heroic efforts to win that fight.
[Indigent defenders] stand alone, armed only with their wits, training, and dedication. Inspired by their clients’ hope, faith, and trust, they are the warriors and valkyries of those desperately in need of a champion. … [Indigent defenders] by protecting the downtrodden and poor, shield against infringement of our protections, and in reality, protect us all.2
As we embark upon our 50th anniversary celebration of the decision in Gideon v. Wainwright, NACDL is honored to announce the creation of the Gideon’s Champions Project, spotlighting and celebrating the work being done daily in the trenches by front-line indigent defenders.
Day in and day out these attorney-warriors toil under difficult circumstances, and they do so not for money or for glory, but because of their commitment to their clients and to justice. They battle tirelessly against the government, the courts, and the general public to assure that those who are often marginalized and forgotten by society have a voice and are heard. Their cases may not garner headlines, but the value and importance of their work - to their clients and the criminal justice system - are immeasurable. Indigent defenders make certain that people are seen for whom they are and not simply defined by what they may have done. They serve as a shield against unjust accusations and a sword against oppression.
They honor the promise made in the Public Defender Credo:
I am the guardian of the presumption of innocence, due process, and fair trial. To me is entrusted the preservation of those sacred principles. I will promulgate them with courtesy and respect but not with obsequiousness and not with fear for I am partisan; I am counsel for the defense. Let none who oppose me forget that with every fiber of my being I will fight for my clients. My clients are the indigent accused. They are the lonely, the friendless. There is no one to speak for them but me. My voice will be raised in their defense. I will resolve all doubt in their favor. This will be my credo; this and the Golden Rule. I will seek acclaim and approval only from my own conscience. And if upon my death there are a few lonely people who have benefited, my efforts will not have been in vain.3
It would be impossible to properly and fully honor each and every individual indigent defender who toils daily in the courtroom. By highlighting the work of some, however, we hope to honor the legacy they represent, the assurance that in the United States the amount of justice a man receives is not dependent on the amount of money in his pocket.
During the next 12 months, each issue of The Champion will profile front-line indigent defenders and the work they do to assure each person accused is not powerless and voiceless before the massive machine of the government. As Gideon’s Champions, these defenders demonstrate that while there may be diversity of geography, defense delivery system and practice, in the field of indigent defense there is a commonality of passion, drive, and dedication.
- The term “indigent defenders” as used in this article includes state and federal public defenders, court-appointed counsel, contract attorneys, and conflict attorneys.
- Hightower v. Florida, 592 So. 2d 689, 692 (Fla. Dist. Ct. App. 1991) (Gersten, J., dissenting).
- Jim Doherty, Cook County (Illinois) Public Defender. n
The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough
By Andrea D. Lyon
When the U.S. Supreme Court decided Gideon v. Wainwright,1 it declared that everyone, poor or not, has a right to a lawyer. Furthermore, everyone has a right under the U.S. Constitution to effective assistance of counsel. What does effective mean? Does it mean merely the presence of defense counsel, or something more?
Twenty years later in Strickland v. Washington,2 the Court defined what effectiveness means - not very much when analyzing whether a defendant received that constitutional guarantee. Courts are deferential to the job done by an attorney and rarely disturb convictions on that basis. In order for a convicted person to succeed with an ineffective assistance of counsel claim, a defendant must prove (1) that her counsel’s performance fell below an objective standard of reasonableness; and (2) the substandard representation so prejudiced her that there is a reasonable probability that the outcome would have been different.3 A defendant does not have to show that the outcome more likely than not would have been different, but rather that counsel’s errors undermine confidence in the outcome.4
The legal effect is that the standard has become a floor below which a lawyer may not fall rather than a standard to which the lawyer should aspire. Worse yet, even if a court finds that a lawyer’s performance fell below that floor, to succeed in obtaining a new trial the defendant must show prejudice. Some have commented that effective assistance of counsel is like a “foggy mirror” test - if defense counsel would fog up a mirror held beneath his nose, that’s good enough.
There are many examples of how poorly a lawyer may perform and still not fall below the standard of reasonableness. For example, the U.S. Supreme Court denied certiorari where the Court of Criminal Appeals of Texas held that counsel’s sleeping through parts of a trial could have been a strategic move and held that the presence of counsel at all times during trial, combined with a failure to show prejudice, did not mean the defendant was ineffectively represented.5 The Illinois Supreme Court held that presenting conflicting theories to a jury (he didn’t do it, but if he did he was insane) was not ineffective assistance of counsel and affirmed the conviction and death sentence.6 Any person would understand these behaviors to “fall below” ordinary care, but the courts did not.
As a result, most claims of ineffective assistance of counsel fail. Courts defer to “strategic choices” by defense counsel - even foolish ones. Usually, the only claims that have a chance of being successful are claims alleging failure to investigate, and of course such claims require someone to discover that there has been a failure to investigate in state postconviction proceedings.
Nonetheless, defense counsel’s overarching duty is to advocate the defendant’s case.7 Counsel also has a duty to bring to bear such skills and knowledge as will render the trial a reliable adversarial testing process.8 “[A]n attorney who fails to even interview a … witness [who] may potentially aid the defense, should not be allowed automatically to defend his omission simply by raising the shield of ‘trial strategy and tactics.’”9
However, as there is no right to a lawyer beyond direct appeal, most postconviction petitions are filed prose, and usually by inmates at correctional institutions who could not conduct an investigation even if they had the skills and resources to do so. In other words if an inmate was poorly represented at the trial level, and is indigent, he cannot likely succeed in state postconviction. And since the advent of the Antiterrorism and Effective Death Penalty Act of 1996,10 he cannot raise issues for the first time in federal court. The only exception to this bar came in 2012 in Martinez v. Ryan,11 holding that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” This holding does not require the state to provide counsel on collateral review, it simply excuses the default.
So what is the answer? Because “effectiveness” has been so diluted by the courts, and is thus inconsistent with the constitutional obligations defense lawyers have to their clients, defense lawyers must hold themselves to a higher standard of effectiveness at the trial level. Effective representation requires a team; it requires investigation, motions litigation, creative thinking and a nonassembly line mindset. 12 Providing good representation would require expending more of the ever-scarcer resources. 13 Might it not also mean, however, that there would be fewer wrongful convictions and fewer societal and financial costs?
In a study of the costs of wrongful convictions, John Conroy and Rob Warden documented that “[w]rongful convictions of men and women for violent crimes in Illinois have cost taxpayers $214 million and have imprisoned innocent people for 926 years, according to a seven-month investigation by the Better Government Association and the Center on Wrongful Convictions. … The joint investigation, which tracked exonerations from 1989 through 2010, also determined that while 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies. Moreover, the 97 felonies in that crime spree may be just a fraction of the total number of crimes committed by the actual perpetrators. The investigation found that the 85 exonerations left 35 murders, 11 rapes, and two murder-rapes with no identified perpetrators and thus no way to add up their accumulated crimes.” 14 Although there are many causes for these wrongful convictions, including prosecutorial, police and forensic misconduct, 15 as the report found, ineffective lawyering had a role as well.
Chart reprinted with permission of John Conroy, Rob Warden, and the Better Government Association. 16
Ineffective lawyering compounds each of the causes of wrongful convictions listed in the chart above. How can this be? Because investigation, thorough motions practice, and zealous advocacy are the greatest checks on our system. If the defense attorney is pushing hard for Brady material, insisting on litigating the admissibility of evidence or the right to present a defense, and asking the tough questions both in and out of court, there is a smaller chance that the other causes of wrongful conviction will prevail. Defense lawyers cannot engage in this kind of advocacy when caseloads are monstrously high, resources such as investigators and experts are in short supply, and the view prevails that if the defendant did not commit this crime, he probably did something else. Effective assistance of counsel benefits everyone, not just the accused. A society that cannot trust its criminal justice system fails.
Having a lawyer who merely shows up in court to say something - be it stupid, unsupported factually, or misguided legally - is not the quality of defense anyone would want. A lawyer who does the bare minimum, perhaps between naps, is not providing effective representation. Minimal due process is not good enough. It is time for the criminal justice system to aspire to a higher standard of effectiveness.
- 372 U.S. 335 (1963).
- 466 U.S. 668 (1984).
- Id at 687.
- Id. at 694.
- McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) (per curiam), reh’g denied, 928 S.W.2d 482 (Tex. Crim. App. 1996), cert. denied sub nom. McFarland v. Texas, 519 U.S. 1119 (1997).
- People v. Whitehead, 169 Ill. 2d 355, 375 (Ill. 1996).
- Strickland, 466 U.S. at 688.
- Crisp v. Duckworth, 743 F.2d 580, 584 (7th Cir. 1984).
- 28 U.S.C. § 2254.
- 566 U.S. ____, 132 S. Ct. 1309, 182 L.Ed.2d 272 (2012).
- See Jennifer M. Allen, Free for All a Free for All: The Supreme Court’s Abdication of Duty in Failing to Establish Standards for Indigent Defense, 27 Law & Ineq. 365 (Summer 2009) (in which the author explains that the courts have abdicated responsibility in this regard by being results-oriented regarding the trial outcome, rather than the constitutional right).
- Note, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 Harv. L. Rev. 1731, 1732 (2005) (in which the author argues that funding is unlikely to arise under the Strickland test for evaluating effective assistance of counsel because the test is oriented towards the ends rather than the means).
- The High Cost of Wrongful Convictions (http://www.bettergov.org/investigations/wrongful_convictions_1.aspx).